B-147535, DECEMBER 14, 1961, 41 COMP. GEN. 404

B-147535: Dec 14, 1961

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BIDS - LATE - REJECTION NOTICE ALTHOUGH THE FAILURE OF A CONTRACTING OFFICER TO GIVE A BIDDER PROMPT NOTIFICATION OF ITS INTENTION TO DISREGARD HIS LATE MAILED BID AS REQUIRED UNDER PARAGRAPH 2-303.6 OF THE ARMED SERVICES PROCUREMENT REGULATION IN ORDER TO GIVE THE BIDDER AN OPPORTUNITY TO PRESENT EVIDENCE OF THE TIME OF ACTUAL MAILING WAS IMPROPER. CONSIDERATION OF THE BID WHICH WAS RETURNED UNOPENED TO THE BIDDER 8 DAYS AFTER AWARD TO THE LOWEST TIMELY BIDDER AND WHICH HAS BEEN OUT OF THE CONTROL OF THE GOVERNMENT FOR MORE THAN 2 MONTHS IS QUESTIONABLE. 1961: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1. THE ENVELOPE WHICH PURPORTEDLY CONTAINED THE BID OF YOUR COMPANY ON THE SUBJECT INVITATION WAS RECEIVED ON SEPTEMBER 8.

B-147535, DECEMBER 14, 1961, 41 COMP. GEN. 404

BIDS - LATE - REJECTION NOTICE ALTHOUGH THE FAILURE OF A CONTRACTING OFFICER TO GIVE A BIDDER PROMPT NOTIFICATION OF ITS INTENTION TO DISREGARD HIS LATE MAILED BID AS REQUIRED UNDER PARAGRAPH 2-303.6 OF THE ARMED SERVICES PROCUREMENT REGULATION IN ORDER TO GIVE THE BIDDER AN OPPORTUNITY TO PRESENT EVIDENCE OF THE TIME OF ACTUAL MAILING WAS IMPROPER, CONSIDERATION OF THE BID WHICH WAS RETURNED UNOPENED TO THE BIDDER 8 DAYS AFTER AWARD TO THE LOWEST TIMELY BIDDER AND WHICH HAS BEEN OUT OF THE CONTROL OF THE GOVERNMENT FOR MORE THAN 2 MONTHS IS QUESTIONABLE, AND CANCELLATION OF THE CONTRACT 2 MONTHS AFTER AWARD WOULD DELAY THE DELIVERY OF URGENTLY NEEDED ARTICLES; THEREFORE, STEPS TO AVOID SIMILAR SITUATIONS IN THE FUTURE SHOULD BE TAKEN.

TO THE DERO RESEARCH AND DEVELOPMENT CORPORATION, DECEMBER 14, 1961:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1961, PROTESTING THE DISREGARD OF THE BID SUBMITTED UNDER MARINE CORPS INVITATION 28-62 COVERING THE PROCUREMENT OF 36 RADIO TEST SETS.

THE ENVELOPE WHICH PURPORTEDLY CONTAINED THE BID OF YOUR COMPANY ON THE SUBJECT INVITATION WAS RECEIVED ON SEPTEMBER 8, 1961, AT 4:06 P.M., MORE THAN 6 HOURS AFTER THE 10 A.M. BID OPENING TIME SPECIFIED IN THE INVITATION. SINCE THE METER STAMP ON THE ENVELOPE MARKED AIRMAIL DID NOT INDICATE THE TIME IT WAS MAILED FROM HUNTINGTON, NEW YORK, ON SEPTEMBER 7, 1961, THE CONTRACTING OFFICE, IN ACCORDANCE WITH PARAGRAPH 2-303.3 (A) (III), ARMED SERVICES PROCUREMENT REGULATION, PROVIDING THAT IF THE ENVELOPE SHOWS THE DATE BUT NOT THE HOUR OF MAILING, THE TIME OF MAILING SHALL BE CONSIDERED TO BE THE LAST MINUTE OF THE DATE SHOWN, CONSIDERED THAT IT WAS MAILED AT 11:59 P.M. UPON INQUIRY TO THE WASHINGTON, D.C., POST OFFICE, IT WAS ASCERTAINED THAT AIRMAIL SENT AT THAT TIME WOULD NOT ARRIVE IN THE WASHINGTON POST OFFICE UNTIL APPROXIMATELY 1:45 P.M. ON SEPTEMBER 8, 1961. IT WAS DETERMINED, THEREFORE, BY THE CONTRACTING OFFICE THAT THE FAILURE TO ARRIVE ON TIME WAS DUE TO THE SENDER'S DELAY IN DEPOSITING THE ENVELOPE FOR MAILING. IN ACCORDANCE WITH ASPR 2-303.7, PROVIDING THAT LATE BIDS WHICH ARE NOT CONSIDERED FOR AWARD SHALL BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER, THE ENVELOPE WAS RETAINED UNTIL IT WAS RETURNED UNOPENED UNDER COVER LETTER OF OCTOBER 3, 1961, 8 DAYS AFTER AN AWARD HAD BEEN MADE TO THE LOWEST TIMELY BIDDER.

UPON RECEIPT OF THE COVER LETTER WHICH STATED THAT THE MAILING HAD NOT BEEN IN SUFFICIENT TIME TO REACH THE CONTRACTING OFFICE BY THE PRESCRIBED OPENING TIME, A REPRESENTATIVE OF YOUR FIRM CALLED THE CONTRACTING OFFICE AND UPON REPRESENTATIONS THAT YOUR FIRM WOULD BE ABLE TO ESTABLISH THAT THE MAILING WAS MADE TIMELY, IT WAS AGREED THAT A STOP-ORDER WOULD BE ISSUED AGAINST THE AWARDED CONTRACT TO PERMIT YOUR FIRM AN OPPORTUNITY TO FURNISH EVIDENCE. HOWEVER, WHEN THE EVIDENCE THAT WAS FORTHCOMING HAD NOT BEEN RECEIVED AFTER MORE THAN A WEEK, IT WAS CONSIDERED THAT YOUR FIRM MIGHT HAVE ABANDONED THE IDEA OF PRESENTING IT AND WITHOUT CHECKING WITH YOUR FIRM TO VERIFY ITS INTENTION DIRECTIONS WERE ISSUED TO THE CONTRACTOR TO RESUME PERFORMANCE BECAUSE OF THE URGENCY OF THE PROCUREMENT. THEREAFTER, THERE WAS RECEIVED FROM YOUR FIRM A CERTIFICATION FROM THE HUNTINGTON, N.Y., POST OFFICE, TO THE EFFECT THAT THE ENVELOPE WAS MAILED ON OR BEFORE 5 P.M. ON SEPTEMBER 7, 1961, AND BASED UPON THE ROUTING INFORMATION CONTAINED WITHIN THE CERTIFICATION, IT WOULD APPEAR THAT THE MAILING SHOULD HAVE ARRIVED ON TIME.

THE LETTER OF OCTOBER 20, 1961, FROM THE CONTRACTING OFFICER TO YOUR FIRM, WHILE IT REFERS TO THE LETTER FROM YOUR FIRM THAT FORWARDED THE CERTIFICATION REFERENCED ABOVE, WAS NOT INTENDED BY THE CONTRACTING OFFICER TO BE A DISPOSITION OF THE EVIDENCE YOU SUBMITTED, BUT RATHER AN EXPLANATION OF THE BASIS UPON WHICH THE DETERMINATION ORIGINALLY WAS MADE THAT THE FAILURE OF THE MAIL TO ARRIVE ON TIME WAS DUE TO YOUR DELAY. HAVE BEEN ADVISED THAT DUE TO THE INSTRUCTIONS OF THE CONTRACTOR TO RESUME PERFORMANCE AND THE CRITICAL NEED FOR THE ARTICLES INVOLVED, IT WAS NOT CONSIDERED THAT ANY OTHER ACTION WOULD BE APPROPRIATE.

THE PRESENT POSTURE OF THIS CASE IS DUE PRIMARILY TO THE FAILURE OF THE CONTRACTING OFFICE TO GIVE COMPLETE ATTENTION TO THE PERTINENT PROVISIONS OF THE ASPR. ALTHOUGH THE CONTRACTING OFFICE DID CONSIDER THE SPECIFIC SECTIONS OF THE REGULATION CITED ABOVE, IT OVERLOOKED THE REQUIREMENT IN ASPR 2-303.6 THAT A LATE BIDDER SHALL BE NOTIFIED PROMPTLY OF THE INTENTION TO DISREGARD ITS BID. THE SAID REGULATION APPARENTLY WAS PROMULGATED WITH THE IDEA OF PERMITTING THE BIDDER BEFORE ANY AWARD IS MADE TO OVERCOME THE PRESUMPTION OF THE TIME OF MAILING BY THE INTRODUCTION PURSUANT TO SUBSECTIONS (A) (VI) AND (B) OF ASPR 2-303.3 OF EVIDENCE THAT SHOWS THAT THE MAILING ACTUALLY OCCURRED AT A TIME THAT WOULD HAVE PERMITTED TIMELY DELIVERY.

HOWEVER, WHILE THE CONTRACTING OFFICE MAY HAVE ACTED IMPROPERLY IN THE CIRCUMSTANCES, THIS CASE IS NOW COMPLICATED BY THE FACT THAT THE MAIL HAS BEEN RETURNED TO YOUR FIRM AND THE HANDLING OF IT HAS BEEN OUT OF THE CONTROL OF THE GOVERNMENT FOR MORE THAN 2 MONTHS. IN THIS CONNECTION, IN B-122060, DECEMBER 21, 1954, THIS OFFICE EXPRESSED SERIOUS RESERVATIONS ABOUT CONSIDERING A LATE BID AFTER IT HAS ONCE BEEN RETURNED TO THE BIDDER.

ALSO, THE GOVERNMENT NOW MUST TAKE INTO CONSIDERATION THE FACT THAT THE PRESENT CONTRACTOR HAS HAD THE CONTRACT FOR MORE THAN 2 MONTHS AND THAT ANY CANCELLATION AT THIS TIME MIGHT SERIOUSLY DELAY THE ULTIMATE DELIVERY OF ARTICLES URGENTLY REQUIRED.

NEVERTHELESS, WE ARE NOT UNMINDFUL OF THE SERIOUS NATURE OF YOUR COMPLAINT AND POSSIBLE LOSS TO THE GOVERNMENT OF A BETTER PRICE THAN IT HAS UNDER THE PRESENT CONTRACT; THEREFORE, THIS MATTER HAS BEEN BROUGHT TO THE ATTENTION OF APPROPRIATE OFFICIALS IN THE MARINE CORPS SO THAT SIMILAR SITUATIONS MAY BE AVOIDED IN THE FUTURE.